704 F.

2d 550
113 L.R.R.M. (BNA) 2396, 97 Lab.Cas. P 10,107,
13 Fed. R. Evid. Serv. 33

LANE CRANE SERVICE, INC., A Florida Corporation,

Plaintiff-Appellee,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION
NO. 177, By and Through its agent, William H.
BROMMER, Defendant-Appellant.
MANNING ELECTRIC & REPAIR COMPANY, INC., Etc.,
Plaintiff-Appellee,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS LOCAL UNION
NO. 177, Etc., Defendant-Appellant.
Nos. 82-5090, 82-5091.

United States Court of Appeals,

Eleventh Circuit.
May 2, 1983.

Mahon, Mahon & Farley, P.A., Lacy Mahon, Jr., Joseph S. Farley Jr.,
Jacksonville, Fla., for defendant-appellant.
Caven & Clark, Alan P. Clark, Jacksonville, Fla., for plaintiffs-appellees.
Appeals from the United States District Court for the Middle District of
Florida.
Before RONEY and CLARK, Circuit Judges, and GIBSON * , Senior
Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge:

Defendant International Brotherhood of Electrical Workers Local Union No.

177 (the union) appeals a jury verdict finding it liable for damages sustained by
plaintiffs, a general contractor and a subcontractor, as a result of an alleged
secondary boycott. The union picketed the work site of the contractor, a
nonunion employer. The employees of the subcontractor, a union employer,
walked off the job after the pickets were posted. The contractor and
subcontractor brought actions accusing the union of conducting an illegal
secondary boycott by picketing a gate reserved for the subcontractor's union
employees. The union argued there was not a separate gate for the
subcontractor. The jury found for the contractor and the subcontractor and the
union appeals. We affirm the judgment of the district court.

I.
2

In the spring of 1980 the City of Jacksonville, Florida, entered into a contract
with Manning Electric & Repair Company (Manning, the contractor) to install a
lighting system at a local ballpark. The subcontract to install light poles at the
ballpark was awarded to Lane Crane Service, Inc. (Lane Crane, the
subcontractor). Because Manning was a nonunion employer, union members
picketed the ballpark, beginning on May 30, carrying signs saying Manning
paid substandard wages. The signs clearly indicated the dispute was with
Manning, not Lane Crane. On June 6 picket signs also protested the city's
refusal to accept an offer by union members to donate labor for the project. On
May 31 Lane Crane's union employees walked off the job and stayed off the job
until June 6, when the National Labor Relations Board obtained a temporary
restraining order from a federal district court. The NLRB actions followed the
filing of unfair labor practice charges against the union by Manning and Lane
Crane.

After the contractor noticed the pickets, he put up signs at two of the gates at
the work site. One sign, at the Duval Street gate said: "Exclusively reserved for
Lane Crane, its employees, suppliers. All others use gate at Franklin Street."
The sign at the Franklin Street gate said: "Exclusively reserved for Manning
Electric, its employees, suppliers. All others use gate at Duval Street." The sign
on the Franklin (Manning) gate was removed on June 3; the Duval Street sign
remained throughout the controversy. Manning sent mailgrams to the union
advising it of the separate gate for Lane Crane and saying that picketing the
Lane Crane (Duval Street) gate would constitute an illegal secondary boycott.
There was some evidence that workers other than Lane Crane employees,
including workers in unmarked Manning trucks as well as other persons, might
have used the Lane Crane gate. The union members continued picketing at the
Lane Crane gate after the signs went up and did not stop until the temporary

restraining order was issued.

4

Manning and Lane Crane each brought an action for damages against the union
alleging the picketing of the Lane Crane gate was an illegal secondary boycott
in violation of Sec. 303 of the National Labor Relations Act. 29 U.S.C. Secs.
158(b)(4), 187 (1976). The union's defense was that there was not in fact a
separate gate for Lane Crane employees and therefore the picketing near the
Duval Street gate was not secondary picketing. The union also argued it was
not responsible for the picketing. The cases were consolidated and tried before
a jury which reached a verdict in favor of both Manning and Lane Crane. The
district court entered a judgment of $12,639.63 for Manning and $22,511.99 for
Lane Crane, including attorney's fees.

The union argues on appeal that (1) the evidence of the existence of a separate
gate for Lane Crane was insufficient to send the case to the jury, entitling the
union to a directed verdict, (2) the district court should have required a "clear
and convincing" showing that the union was responsible for the picketing, and
(3) the district court erred in admitting into evidence documents relating to
unfair labor practice charges filed by Manning and Lane Crane with the NLRB
against the union based on the picketing.

II.
6

The law regarding secondary picketing is well stated in Texas Distributors v.

Local Union No. 100, 598 F.2d 393 (5th Cir.1979). It is an unlawful labor
practice for a union to engage in a secondary boycott by inducing a person to
refuse to perform services where an object thereof is to force one employer to
cease doing business with another employer or to force an employer to
recognize the labor union as the representative of his employees unless the
union is the legal representative of the employees. Informational picketing at a
common work site advising the public that an employer pays substandard
wages is lawful. However, even informational picketing, which was involved
here, will be considered unlawful if any object of the picketing is for an
unlawful purpose. The picketing will be unlawful if there is " 'an expectation or
a hope or a desire that employees of the secondary employer will be induced or
encouraged to take concerted action' to quit working behind the picket line in
order that a prohibitive secondary effect on the primary employer will occur."
Id. at 398, quoting Superior Derrick Corp. v. NLRB, 273 F.2d 891, 897 (5th
Cir.), cert. denied, 364 U.S. 816, 81 S.Ct. 47, 5 L.Ed.2d 47 (1960).

Thus, it is necessary to determine the union's motive in the picketing. In

determining the motive or object of the picketing, a court will look at the

totality of the evidence. Texas Distributors, 598 F.2d at 399. Furthermore, in

determining whether the union was entitled to a directed verdict, we must
examine the evidence in the light most favorable to the parties opposing the
motion for a directed verdict to determine if "reasonable men could not arrive at
a contrary verdict." Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482,
484 (5th Cir.1980), quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th
Cir.1969).
8

Part of the evidence of an improper motive on the union's part was evidence
that the union knew that Lane Crane's union employees were likely to honor the
picket line. Lane Crane's union representative testified that the defendant
union's business agent told him that the picketing was sanctioned. Other
evidence of an improper motive was the union's picketing of a separate gate
marked for exclusive use by Lane Crane. The evidence of the existence of a
separate gate was not undisputed; there was some evidence that persons other
than Lane Crane employees used the gate, but the evidence did show a
separately designated gate was provided for Lane Crane, its employees and
suppliers. Also there was some confusion caused by the signs because for a few
days both gates directed everyone other than Manning or Lane Crane
employees to use the other gate, but the Manning sign at the Franklin gate was
removed on June 3, thus eliminating any ambiguity or confusion between the
two gates. The evidence regarding the union's motive was substantial. There
was clearly enough evidence to submit to the jury the issue of whether one of
the objects of the picketing was to get Lane Crane union workers to walk off
the job. Lane Crane as a neutral employer should not have been subjected to a
secondary boycott.

The union also argues the district court erroneously instructed the jury as to the
plaintiff's burden of proof in making the union responsible for the picketing.
The district court applied the preponderance of the evidence standard and the
union argues the court should have used the "clear and convincing" standard.
The union cites Sec. 6 of the Norris-LaGuardia Act, 29 U.S.C. Sec. 106 (1976),
in support of its position. That section provides:

10 officer or member of any association or organization, and no association or

No
organization participating or interested in a labor dispute, shall be held responsible
or liable in any court of the United States for the unlawful acts of individual officers,
members, or agents, except upon clear proof of actual participation in, or actual
authorization of, such acts, or of ratification of such acts after actual knowledge
thereof.
11

(Emphasis added). The Supreme Court has interpreted "clear proof" in this

context to mean "clear, unequivocal, and convincing proof." United Mine

Workers v. Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1145, 16 L.Ed.2d 218
(1966). However, the Labor Management Relations Act was subsequently
enacted, and it "expressly provides that for the purposes of that statute,
including Sec. 303, the responsibility of a union for the acts of its members and
officers is to be measured by reference to ordinary doctrines of agency, rather
than the more stringent standards of Sec. 6." Gibbs, 383 U.S. at 736, 86 S.Ct. at
1144. See also 29 U.S.C. Secs. 152(13), 185(e), 187(b) (1976). Under the labor
laws as amended and under the Supreme Court's interpretation of those laws in
Gibbs, the clear and convincing standard does not apply to a secondary boycott
claim.
12

The evidence is clearly sufficient to support the verdict under the

preponderance of the evidence standard. The union's business agent told the
members where to picket, when to picket, and the picket signs were purchased
by the union. The pickets included a union officer and a member of the
executive board. The membership was given a report on the picketing and the
business agent noted that the pickets were "doing some good." Although the
union did not expressly authorize or ratify the picketing, express authorization
or ratification are not necessary for liability. 29 U.S.C. Sec. 152(13) (1976).
There was ample evidence to find the union liable under ordinary agency
standards.

13

The last issue the union raises is that it was prejudiced by the admission into
evidence of Manning's and Lane Crane's filing of unfair labor practice charges
with the NLRB against the union. The court instructed the jury the admission
of the evidence of the charges was related solely to the issue of the union's
notice of the charges and not to the truth of the matter asserted in the charges.
The union's notice of the objections of Manning and Lane Crane to the
picketing at the Lane Crane gate was relevant, and evidence of the filing of the
charges with the NLRB was probative on the issue of the union's notice. The
evidence was properly admitted.

14

The judgment of the district court is AFFIRMED.

Honorable Floyd R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting
by designation